The New Zealand Law Society (NZLS) is attempting to allay concerns about its ability to safeguard the rule of law if it’s “reduced” to a voluntary, representative organisation.
NZLS recently hosted two webinars following the release of an independent review panel’s final report into the future regulation and representation of legal services in New Zealand. Wide-ranging and controversial reforms have been proposed which will be implemented only if they get the green light from government.
On the webinars, lawyers were guided through the recommendations and panel members answered questions.
One attendee was concerned about how the Law Society might effectively uphold the rule of law “if it is reduced to a voluntary membership body”.
The panel’s most significant recommendation is to hand the Law Society’s watchdog role to a new, independent body. The Law Society would lose its function as a regulator and become a solely representative organisation.
If that eventuates, NZLS President Frazer Barton said safeguarding the rule of law would continue to be important to the organisation.
“Yes, with less funding, that is going to be a major challenge. That’s something we’ve got to come to grips with. But at the moment, the Law Society has to ask the minister for sign-off on a number of things.
“I do see an attraction in having a Law Society that doesn’t have to bow, scrape and beg and we can speak up really strongly, independently. But to be able to do that, we’re going to have a high level of membership and resolve funding issues,” Barton said.
With the 2023 election looming, work has already started to ensure the Law Society’s representative function was “sustainable and strong going forward”, he said.
Panel chair Professor Ron Patterson said representative bodies in jurisdictions that have established separate, independent watchdogs have demonstrated they offer additional value to their professions.
“It is certainly the case that lawyers, when it’s voluntary, will look and say ‘who’s going to best serve our interests?’ There will be a challenge for the New Zealand Law Society to say ‘we’re the national body. And yes, [you] can belong to Te Hunga Rōia…but we can bring something special and distinct’.”
Panel member Professor Jacinta Ruru said NZLS was an “incredibly important” entity for upholding the rule of law.
“If there is a separation…the New Zealand Law Society will be able to continue to speak freely and strongly on the rule of law without being hindered, I suppose, by that regulator role,” she said. “We can see some real benefits there.”
Barton said there was a “compelling logic” to the proposed separation.
“It’s not entirely surprising what the conclusion was. We are being constantly confronted, on a day-to-day basis, with the inherent conflict that sits with being in these two roles.
“There’s a logic to most of the other recommendations. I would also suggest there’s probably some where we’ll be looking particularly for feedback from the profession and there may be some tweaking needed,” he said.
“But overall, we welcome the recommendations and particularly the most significant one. As I say, I think it’s pretty hard to argue against.”
Another attendee asked whether the panel had considered a future where the Law Society dropped its representative function and only regulated the profession.
Patterson confirmed the scenario had been considered, with feedback sought from Canadian commentators on how it’s worked out practically in that jurisdiction.
“This is the time for a separation. We see the most valuable future of the Law Society in being the national representative body,” he said.
‘In the lap of the gods’
This year’s election – and the possibility of a change of government – meant “we are going to be in the lap of the gods”, Barton said.
“We do have to deal with a period of uncertainty perhaps, and if there is a government that’s not of a mind with these recommendations in the short-term, we are going to need interim arrangements,” he said.
“That will involve discussion within the council and feedback from council constituents.”
Patterson added that several improvements were already being made, but legislative change was necessary to give effect to the full range of recommendations.
“That, in turn, will require political will,” Patterson said. “Our job is done now. But as we say in the report, we hand it over, trusting that the once-in-a-generation opportunity of this review will be seized.”
The NZLS board is taking soundings from its 25-member council. Those soundings are based on members consulting with their own constituents.
The council comprises the president, four vice-presidents, 13 regional branch presidents and seven “sector” groups representing areas of law (family and property, for instance) and broader interests (such as in-house lawyers, Te Hunga Rōia Māori, and Pacific Lawyers Association).
Barton said the board will meet with the council at the end of June to discuss the feedback received, with the aim of sending its final response to the government at the end of July. From there, it’s up to the Justice Minister to decide whether the recommendations would be put on the legislative agenda.
In a subsequent Q&A session moderated by prominent Māori businessman Whaimutu Dewes, Barton confirmed all 13 branches are conducting surveys of their respective members.
“Yes, the means of getting feedback is via those council members,” said Dewes, who chaired the seven-member steering group that developed the terms of reference for the review panel. He said the survey process ran alongside the opportunity for members of the profession to provide feedback.
Practitioners have until 31 May to respond.
One attendee asked how the branch surveys were being notified to members and whether practitioners would have enough time to respond.
Barton said surveys were being released via email from council members. “[Those] should be with people. If they don’t get it, then get in touch with someone to make sure that happens.
“As I say, it is important to get that feedback so it should be with people if not now then shortly.”